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The Queen v Laycock and Stokes[1999] QCA 307

The Queen v Laycock and Stokes[1999] QCA 307

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

 

 

C A No 465 of 1998

 

 C A No  487 of 1998 

 

Brisbane

 

THE QUEEN

 

v

 

GLEN DOUGLAS LAYCOCK

Appellant

and

LOU ANTHONY STOKES

(Applicant) Appellant

McMurdo P

McPherson JA

Atkinson J

Judgment delivered 6 August 1999

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

IN RESPECT OF C.A. NO.  465 OF 1998, THE APPEAL AGAINST CONVICTION IS DISMISSED.

IN RESPECT OF C.A. NO.  487 OF 1998, THE APPEAL AGAINST CONVICTION IS DISMISSED AND THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS REFUSED.

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - appeal against conviction for murder, deceased killed by fatal blow to head with baseball bat after evening of prolonged violence inflicted by members of motorcycle club - whether conviction against ‘batter’ unsafe and unsatisfactory - whether judge gave adequate warnings about evidence of co-offenders who testifed for Crown - whether Crown established that blows at side of road caused death - whether judge gave adequate directions as to causation - whether judge gave adequate directions as to drawing inferences

Criminal Code, s 293, s 302(1)(a), s 632

Penalties and Sentences Act 1992, s 13A

Charlie v The Queen [1999] 73 ALJR 809;

Crofts v R [1996] 186 CLR 427;

Longman v R [1989] 168 CLR 79;

R v Cheshire [1991] 3 AllER 670;

R v Jeffrey CA No 154 of 1997, 14 August 1997;

R v Knight [1992] 66 ALJR 860;

Royall v The Queen [1991] 172 CLR 378 considered

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISCARRIAGE OF JUSTICE - whether Crown should have recalled witness for further cross-examination after tactical decision of defence - whether defence should have been allowed to cross-examine witness as to character of another witness

R v Apostilides [1984] 154 CLR 563;

R v Brown and Hedley [1861-73] All ER Rep Ext 215;

R v Burns CA No 427 of 1998, 28 May 1999;

R v Foley CA No 136 of 1998, 11 August 1998;

R v Richardson; R v Longman [1968] 2 AllER 761;

R v Watson 171 ER 591; Wakely v The Queen [1990] 64 ALJR 321, considered

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISCARRIAGE OF JUSTICE - whether direction in terms of R v Woollin required

Criminal Justice Act 1967 (UK)

R v Willmot (No 2) [1985] 2 QdR 413, approved;

R v Woollin [1998] 4 All ER 103, considered

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISCARRIAGE OF JUSTICE  - whether judge should have put provocation to jury - whether judge should have allowed jury to consider aiding in self-defence

Criminal Code, s 304

Bullard v The Queen [1957] AC 635;

R v Hunter [1988] 1 QdR 663;

R v Sabri Isa [1952] StRQd 269;

R v Sreckovic [1973] WAR 85;

Van den Hoek v The Queen [1986] 161 CLR 158, considered

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR UNSUPPORTABLE VERDICT - appeal by driver of vehicle against conviction of manslaughter, deceased killed by fatal blow to head with baseball bat after evening of prolonged violence inflicted by members of motorcycle club - whether reasonable jury could infer that when appellant stopped car, he knew co-accused would assault or kill deceased

Counsel:

Mr A Kimmins for the appellant Laycock

Mr B Walker SC for the applicant/appellant Stokes

Mr M.J. Byrne QC for the respondent

Solicitors:

McLaughlins for the appellant Laycock

Boe & Callaghan for the applicant/appellant Stokes

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:7 May 1999


REASONS FOR JUDGMENT - McMURDO P

 

Judgment delivered 6 August 1999

 

  1. On 25 November 1996, about 18 members of the Finks Motorcycle Club invaded a property at 211 Lance Road, Maclean in order to retrieve a custom-built Harley Davidson motorcycle, the property of a member of the Club, Stephen Cranney.  Before the night was out, Darryl Lewis, who lived on the property was dead.  The appellants were charged with his murder and after a trial lasting over two weeks Laycock was convicted of murder and Stokes of manslaughter.  Both appeal against their convictions and Stokes seeks leave to appeal against his sentence.

The facts

  1. The trial transcript reads like a B-grade film script, but the violence was real and the ending truly tragic.  The most significant witnesses were Club members Stephen Cranney and Jeff Nelson.
  1. Stephen Cranney gave evidence that his custom-built Harley Davidson was stolen in February 1995, the night before a bike show organised by the Finks Motorcycle Club.  On 25 November 1996, Cranney received information from a member of another club that his motor bike was in the possession of brothers, Scott and Darryl Lewis.  Their address was ascertained and a reconnaissance made of the property in daylight and again at dusk.  At about 7.30 or 8.00 p.m., Cranney and approximately 17 other male members of the Finks Motorcycle Club, including the appellants, gathered together in five vehicles at a park near the Lewis' property.  The Sergeant-at-Arms of the Club, Steve Avis, whose elected role involved keeping the peace, informed the gathering that no-one was to be killed.  One of the vehicles had hand guns and a sawn-off shotgun in the boot.  They travelled in convoy to the Lewis' property to retrieve the bike.  The Lewis brothers were not home, but Paul Schultz, who shared their accommodation, was.  Schultz locked up the dogs and was detained.  Stokes and others ensured he did not escape and ransacked the house in search of keys to a storage shed believed to hold the bike.  A promising set of keys was located.
  1. The Lewis brothers returned home to be confronted by Club members emerging from hiding.  Scott Lewis gave evidence that he grabbed an iron bar but dropped it after Cranney pointed a gun at him.  Cranney identified himself and his purpose and Scott Lewis confirmed the keys which had been found were to a storage site where the bike was held.  He knew the location but it was not a 24 hour facility and the bike could not be retrieved without police involvement at that time of night.  Laycock gave Scott two swift blows with an aluminium baseball bat to the knee and the side of the face, fracturing his knee and skull and causing him to drop to the floor.  Scott was apparently unconscious for a time and was unable to get to his feet to assist his brother Darryl.
  1. When he regained consciousness he saw five to seven men bashing his brother Darryl, two or three were armed with metre long objects and five or six others were kicking and punching him.  Darryl continued to be struck after he had fallen to the ground on all fours on the back, arms, kidneys and head until he had no fight left in him.  When Darryl was forced into the back seat of his own white Commodore sedan, he was more subdued and the top and back of his head appeared wet.
  1. Scott was placed in a separate vehicle to be taken to the storage shed from which the bike was to be retrieved.  He was cooperative and prepared to assist in returning the bike.
  1. Both Cranney and Nelson described Darryl as aggressive and fighting off a number of men, including Laycock.
  1. Nelson gave evidence that Darryl came towards Laycock with a bat and a fight ensued.  Laycock got the bat from Darryl and hit him once on the head but Darryl continued "going crazy" and broke loose.  Stokes came out of the house.  Nelson then tried to settle Darryl by grabbing him in a bear hug.  Darryl broke free and punched Stokes and "Harro".  Stokes "was sort of on the ground when I'd seen him.  Then he sort of skidded back" but did not punch back.  Nelson grabbed Darryl in another bear hug and wrestled him to the ground.  Two or three others held him on the ground.  The bat was not used at this stage.
  1. In cross-examination, Nelson said Stokes had been drinking fairly heavily but was happy.  He conceded he was unsure who was doing what, basically Stokes was staying out of it, and he was not sure if Stokes was knocked over in the altercation with Darryl, "but he's the only one that sort of fits that skinny description".
  1. Darryl again broke loose and started punching some of the eight others who were by now involved in the struggle.  Darryl was forced to the ground by Nelson and held there by a number of others.  Nelson poured water on the deceased to settle him which made him more aggressive.  Punches were thrown as Nelson tried to settle him.  Darryl's brother, Scott, was also trying to calm him, telling him to get in the car and pick up the bike.  Darryl said, "Get fucked.  I'll kill the lot of them."  Nelson and others wrestled and threw Darryl into the boot of his car; Darryl was smashing the boot with his fists and his head and Scott Lewis persuaded them to take him out.  Darryl was pulled out of the boot, still struggling and abusive, and was wrestled and pushed by Nelson into the back of the car. Darryl said, "You can all get fucked.  I'll kill the lot of youse.  You're not getting your bike."  Darryl had a blood nose and cuts on his face and was spitting blood at Nelson.
  1. Both Cranney and Nelson gave evidence that the brothers were to be taken to the storage shed in order to retrieve the bike: if it was not accessible at that time they would be held until the bike could be retrieved.  Darryl's car was to be taken so that the Lewis brothers and Schultz would have a car in which to return.  Both Cranney and Nelson identify Stokes as the driver of Darryl's car and Laycock as the front passenger.  Nelson was in the back seat with Darryl and Schultz.  Cranney saw Laycock with the bat as he got into the car but Nelson did not see the bat.
  1. Nelson gave evidence that Stokes drove Darryl out of the property and onto Lance Road.  Nelson had his head out the left rear passenger window as he was having difficulty breathing because of heart and chest pains.  He had no recollection of seeing or hearing anything in the car.  He cannot recall the reason but the car stopped "pretty quick".  Immediately before, Darryl had jumped up and grabbed Nelson around the neck so that he could not breathe.  Darryl said, "I'll kill you, you cunt."  Nelson hit the door handle and fell out with Darryl on top of him and with Nelson's legs still in the car.  Laycock dragged Darryl off Nelson by the shirt and Nelson returned to the car.  Darryl was going "berserk", was very strong and forceful and advanced on Laycock.  Darryl and Laycock fought with fists and the deceased said, "Get fucked.  I'll kill the lot of youse.  You're not getting your bike."  Laycock hit Darryl on the head with the bat, slowing him down a little.  Darryl was on his knees and Laycock again hit him on the head with the bat.  Darryl then stopped and was "sort of out to it".  Nelson helped Laycock get him back in the car. 
  1. Nelson claimed that "Laycock said, '... he deserved it', you know, because he was trying to kill me (Nelson), ... ."  Darryl's vehicle caught up with the other vehicles; all then moved off in convoy.
  1. Paul Schultz gave evidence but his account was vague and he claimed to be unable to identify any offenders. 
  1. Schultz had been placed in the back seat of Darryl's Commodore and noticed Darryl's hair was heavily matted with blood and when Darryl commenced to struggle Schultz held him face down to prevent him getting up and to assist his breathing.
  1. Schultz claimed he did not notice the driver at the house and saw no aggressive acts from the driver.  The driver and others told him just to sit tight and he would be alright.   Darryl was struggling trying to get up from the car floor well and Schultz was holding him down.  Darryl was saying things like "Get fucked" and was told to shut up once or twice by the other people in the car.  When the car stopped, Schultz noticed for the first time the front passenger had a bat which was upright in the foot well with the handle between his legs.  The bat may have been visible to the driver.  He was unsure which passenger pulled the deceased out of the car but both alighted; the driver remained in the car.  He could not see what happened outside but heard gravel under feet and a "pretty loud echo" of the baseball bat being used once.  Darryl was then thrown head first back into the same position in the car; he seemed unconscious and had lost control of his bowels.  The other passengers returned to their former positions.  The back passenger said, "Why did you do that for?"  "What did you bring the bat for?"  The front passenger said something like, "Oh, if I'd brought a gun I'd have blown his head off." 
  1. Darryl's car was the last to leave the property.  Cranney's car was waiting about 300 metres up the road for Darryl's car to catch up.
  1. Darryl regained consciousness.  Schultz could hear his breathing was laboured and that there was fluid in his windpipe: he seemed to be asking for help.  Shortly afterwards, his breathing stopped.  Darryl's vehicle pulled up beside Cranney's and the driver and front passenger told Cranney that Darryl was "pretty crook" and "might be dead".
  1. Darryl's vehicle detoured to an unmanned ambulance station at Beenleigh where his body was left on a grassy verge outside.  Four phone calls to 000 were made over the next 45 minutes from a number of public phone booths: on three occasions the caller was Stokes and on one occasion Cranney.
  1. The postmortem examination revealed amphetamine in the deceased's blood; injuries including multiple lacerations and bruises to the face, skull, arms and hands, trunk and "tram track" bruising to the legs and buttocks, five fractures of the ribs and fractures of the facial bones, so severe as to destroy the skeleton around the nose and both cheeks, as well as severe widespread fractures to the skull which reduced the floor of the skull to small pieces, together with multiple bruises to the surface of the brain.  "Tram track" bruising is a pattern which appears when an object with a circular or oval cross section comes into forceful contact with the skin, squeezing the blood in two different directions at the moment of impact and rupturing blood vessels along parallel lines on each side of the point of maximum contact: it is consistent with a large degree of force.  The degree of force used to cause injuries to the head was severe and would have been from at least half a dozen impacts.
  1. The cause of death was primarily head injuries but all injuries contributed.  It was impossible to say whether injuries inflicted at the house or injuries inflicted outside the car were the major cause of death; the worse his condition in the car prior to the final assault, the more likely the injuries at the house caused his death, and vice versa.

Laycock's grounds of appeal

1. Unsafe and unsatisfactory

(a)Failure to direct adequately as to the dangers of acting on the evidence of Cranney and Nelson

  1. Leave was given to add an additional ground of appeal that the learned trial judge erred in failing to direct the jury fully on the real dangers of acting on the evidence of Cranney and Nelson.  As the submissions as to ground 6(c) were interwoven in the argument as to the unreasonableness of the jury verdict, it is convenient to deal with both grounds together. 
  1. The prosecution case against Laycock was that he struck the deceased with a baseball bat outside the car intending to kill or do grievous bodily harm to him under s 302(1)(a) of the Criminal Code.
  1. As has been noted, the essential witnesses for the prosecution were Nelson and Cranney.  By 19 December 1996, Cranney, Nelson, Avis and Gibson, all members of the Club, had been arrested, charged and remanded in custody.  Cranney told police at that time, "I know nothing about it so there's no use having an interview."  On 23 January 1997, in an affidavit in support of his Supreme Court bail application, Cranney swore that he denied all allegations and had no knowledge of the complaints.  He said this was because he did not believe he was involved in Darryl Lewis' death.  By April 1997, in preparation for committal, Cranney, through his lawyers, had been provided with all of the police information in relation to the prosecution case.  In April 1997, whilst in prison, Cranney asked Nelson to take full responsibility for Cranney in return for payment.  Later that month, Cranney and Nelson were committed for trial.  Cranney was advised by his barrister that he had a better than even chance of being convicted of murder.  Cranney made a second unsuccessful bail application on 4 July 1997.  He then tried unsuccessfully to gain an indemnity from prosecution in return for giving evidence.  The Director of Public Prosecutions agreed, however, that if he gave evidence providing the name of the person who wielded the bat, the murder charge would be dropped and instead he would be charged with grievous bodily harm with intent in respect of Scott Lewis.  An unsigned document setting out what Cranney could say in respect of the incident had been sent to police and then forwarded to the Director of Public Prosecutions to encourage the DPP to make that decision.  A statement said to be that document was put to Cranney in cross-examination but Cranney did not accept it as his statement and disputed parts of it which were inconsistent with his testimony.  Although there was much cross-examination on the point at trial, Cranney did not concede, and nor was it clearly proved, that he had adopted the document as his at committal. 
  1. As a result of Cranney's statement, Steve Avis, who had been committed for trial for murder, was discharged.
  1. After undertaking to give evidence against Laycock and Stokes under s 13A of the Penalties and Sentences Act 1992, he was sentenced in the District Court, Brisbane, to 9 years imprisonment with a recommendation for parole after two and a half years for the offence of grievous bodily harm with intent.  This offence constituted a breach of a 12 month suspended sentence for dangerous driving for which he was given a six month cumulative sentence.  In October 1998 he was released on home detention prior to consideration of his parole application in April 1999.
  1. In August 1997, Laycock was arrested and charged with murder.  Cranney gave evidence for the prosecution at his committal in March 1998.
  1. In November 1998, an indictment was presented in the Supreme Court charging Laycock, Stokes and Nelson with murder.  Two weeks before trial the investigating police officer, at the request of the Director of Public Prosecutions, took a witness statement from Nelson in the presence of his lawyers in order to consider whether a plea to manslaughter would be accepted in discharge of the indictment.  On 21 October 1998, Nelson pleaded guilty in the Supreme Court at Brisbane to one count of manslaughter and three counts of deprivation of liberty and was sentenced to 9 years imprisonment with a recommendation for release on parole after serving two and a half years.  He, too, was sentenced under s 13A of the Penalties and Sentences Act 1992 having provided an undertaking to give evidence against Laycock and Stokes. 
  1. Both Cranney and Nelson were liable to be re-sentenced if they failed to give evidence in accordance with their undertaking.
  1. The appellant's counsel Mr Kimmins, who was also counsel below, submits that the verdict is unsafe as the prosecution failed to establish that the appellant Laycock was the front passenger in the vehicle; the only evidence identifying Laycock as the front passenger was that of Cranney and Nelson, and such evidence was unsafe for the jury to accept. 
  1. He submits Cranney and Nelson are not just accomplices but also prison informers.  There is no evidence that Cranney and Nelson were prison informers: they did not give evidence of any alleged confessions made by the appellants whilst in prison.  They are, however, clearly accomplices. 
  1. Section 632 of the Criminal Code now provides:

"(1)A person may be convicted of an offence on the uncorroborated testimony of one witness, unless this Code expressly provides to the contrary.

(2)On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of one witness."

  1. His Honour recognised that this case was one where a warning was necessary despite s 632: see Longman v R[1] and Crofts v R.[2]  His Honour gave a detailed and strong direction to the jury to scrutinise the evidence of both Cranney and Nelson very carefully because they had an interest in minimising their own roles and building up the roles of others; they had received a lesser sentence because of agreeing to give evidence and could be re-sentenced if they failed to do so; and they were released into the community earlier than if they had not pleaded guilty and cooperated.  His Honour told the jury that there was no evidence corroborating Cranney and Nelson in the crucial respects and that that was another reason why their evidence required careful scrutiny.  His Honour also mentioned that there was some evidence from Nelson that Cranney may have had animosity towards Laycock because Laycock had formed an association with the daughter of a police officer.  His Honour's directions on this issue covered six pages of transcript and included the following directions:

"... (they) have about them considerations which require their evidence to be scrutinised very carefully.

...

... you have to approach their evidence with great caution in order to accept it.

...

You need carefully to consider their evidence.  There is no other evidence - there is nothing among the whole body of evidence other than theirs which supports their evidence on the crucial points.

...

... so you are therefore left with the position that the evidence of Nelson and Cranley (sic) is not corroborated, supported, by other evidence in circumstances where it requires careful scrutiny for the reasons identified to you earlier.

Now, you are entitled to accept the evidence or part of the evidence of either or both of Cranley (sic) or Nelson provided that you have scrutinised it very carefully and provided you bear in mind the considerations which I mentioned and indeed any others which you think are relevant and which I have not mentioned and it is particularly important in that context that you bear in mind that it is not supported by evidence coming from any other source but them.

So that is a very powerful consideration which you need to be confident [to] overcome before you could act on the evidence of one other or both of them in implicating either of the accused in the murder or any lesser crime in respect of the death of the man, Lewis.

...

I simply leave it on the basis of emphasising to you that you need to approach their evidence separately with great care and you need to evaluate it in the light of the considerations which I have identified and any others which you think might bear on it."

  1. His Honour earlier told the jury that they were entitled to accept part of the evidence of a witness and to reject other parts.
  1. Having had these careful directions from the trial judge and no doubt the benefit of addresses from counsel canvassing these issues, it was a question for the jury as to whether they accepted the evidence of Cranney and/or Nelson as to the crucial points.  Although Mr Kimmins has pointed out a number of inconsistencies between Cranney and Nelson's evidence and between their evidence and that of other witnesses, the inconsistencies neither alone nor collectively required the rejection of the evidence of Cranney and Nelson.
  1. The jury could not use the evidence of Nelson to corroborate the evidence of Cranney and vice versa; they were obliged to assess the evidence of each independently.  They were entitled to accept some of Nelson's evidence and some of Cranney's evidence.  If they did so, those pieces of evidence could properly be used by them, together with the evidence of Scott Lewis and the evidence of Paul Schultz as to the sound of the bat and that after the front passenger returned to the car he said, "Oh, if I'd brought a gun I'd have blown his head off", to reach satisfaction beyond reasonable doubt that the appellant Laycock was the front passenger who struck Darryl with the baseball bat after Darryl had been removed from the car and that when he did so, he intended to either kill Darryl or cause him grievous bodily harm under s 302(1)(a) of the Criminal Code.

(b) Causation

  1. The appellant next submits that the case is unsafe and unsatisfactory because the prosecution did not establish that anything that occurred on the side of the road contributed significantly to the death of Darryl Lewis.  The submissions made merged with ground of appeal (6)(b), that the learned trial judge erred as to the proper test for causation, and can be conveniently dealt with together.

(i) The evidence

  1. Dr Naylor's evidence was that the cause of death was head injuries which included the injuries to the scalp, skull, brain and face, but death was a result of all the injuries to him, including the rib fractures; although asphyxia following inhalation of blood from the collapse of the base of the skull and central structure of the face may well have played an important role in causing death, it was not necessarily the only mechanism whereby the head injuries led to his death.  Dr Naylor was unable to say whether death was caused by the injuries received at the house or outside the car: the worse his condition in the car, the more likely the injuries at the house were the cause of death.
  1. The appellant submitted that the blood splatter patterns at the side of the road and on the vehicle do not support the evidence of Nelson that the deceased was struck on the head with the baseball bat outside the car.  The evidence as to blood gives no real assistance one way or the other on this point.
  1. Schultz's evidence is that Darryl had suffered significant injuries at the house but was alive and offering resistance in the car, the car stopped, the front passenger had a baseball bat, both passengers took Darryl out of the car, he heard the sound of a bat hitting something, and Darryl was returned to the car unconscious, briefly regained consciousness, and died.  If the jury were satisfied that the appellant Laycock was the wielder of the bat outside the car; that Darryl was very much alive and actively resisting in the car until he was hit with the bat by Laycock and rendered unconscious with no significant improvement to his condition prior to death, they were entitled to find the necessary causation established beyond reasonable doubt.  Nelson's account adds support to a causal connection between Darryl's death and Laycock's actions with the bat.
  1. There was evidence which the jury could properly accept that the appellant hit Darryl with the baseball bat outside the car and that this was a substantial cause of his subsequent death.

(ii) The jury direction

  1. Mr Kimmins submits that the learned trial judge erred in his summing up to the jury as to the proper test for causation.
  1. His Honour read to the jury s 293 of the Criminal Code and stated:

"The test is whether you are satisfied that the batter's acts after Lewis was pulled out of the car contributed significantly to Lewis' death.  It does not have to be established that the acts were the sole cause, but they have to contribute significantly.  You do not have to evaluate competing causes for death or to decide that there was a main cause or a dominant cause.  The test is a significant contribution and significant contribution conveys the notion of a contribution which is more than negligible.  So that you have to have a significant contribution, something which is more than negligible, but you do not have to be satisfied in terms of the discrimination between main or dominant or other causes."

  1. His Honour's direction was consistent with R v Cheshire:[3]

"It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused's acts can fairly be said to have made a significant contribution to the victim's death.  We think the word 'significant' conveys the necessary substance of a contribution made to the death which is more than negligible."

  1. His Honour told the jury on five occasions during his concise direction that the act had to be a significant contribution, mentioning the word "negligible" only once.  There can be no fair complaint about this direction.
  1. It cannot be said that the jury verdict was unsafe and unsatisfactory on any of the grounds argued.

2. The failure of the Crown to recall Schultz

  1. The appellant's next ground of appeal is that the Crown failed to recall the witness Schultz in order to allow further cross-examination in relation to prior identification of the front passenger and the learned trial judge refused to allow defence counsel to cross-examine Det. McLeod in relation to Schultz's prior identification of the front passenger. 
  1. Mr Kimmins sought to cross examine Det. McLeod about the witness Schultz's possible identification of Avis as the front passenger.  The prosecution objected as this allegation was not put to Schultz during cross examination.  From the submissions made below, it seems that Schultz in November 1996 told Det. McLeod he could not identify anyone involved in the incident.  At an NCA hearing, he reaffirmed this but later said he at least knew Stephen Meyer, known as "Smurf".  Later, from photographs which included Laycock, he identified Steven Avis and said he was 50 per cent certain that he was the batter, and that Cranney was similar to a person at the house.  Mr Kimmins was familiar with this material at the time of trial, but chose not to raise the issue when cross-examining Schultz, apparently because it could raise the suggestion that Schultz in fact knew the identity of the batter but was too fearful to name him.  Earlier in the trial, Laycock's counsel had raised with the judge whether Schultz should be cautioned as to his privilege from self-incrimination if questioned on this issue. 
  1. His Honour ruled that as the jury had been deprived of the opportunity to observe Schultz questioned on the issue, the cross-examination of Det.  McLeod was not permissible.
  1. The prosecution did not recall Schultz for further cross-examination but stopped him leaving on his flight.  The prosecution indicated that if the judge ruled that the Crown had an obligation to recall him, he would be recalled.  His Honour indicated, and Mr Kimmins agreed, that there was no power to order the Crown Prosecutor to recall the witness.  Mr Kimmins did not suggest that he wanted to call Schultz in his case.  He now submits that the failure to recall Schultz has resulted in a miscarriage of justice.
  1. This was not a case where there was a failure to put instructions through error or oversight as in R v Burns.[4]  Here, the defence made a tactical decision not to put matters to Schultz hoping to more safely achieve the desired information through Det.  McLeod.  When this failed he sought to have Schultz, who had been excused and who was not an entirely willing and relaxed witness, recalled.  The judge was not obliged in these circumstances to intimate to the prosecutor that the witness should be recalled; nor was the prosecutor obliged to recall the witness: see R v Apostilides.[5]
  1. In any case, Cranney agreed during cross examination that identifications had been made of him and Nelson, and that Avis had been identified as being 50 per cent likely to be the batter who struck the deceased outside the car. 
  1. It cannot be said the decision of the prosecutor not to recall Schultz here gives rise to any miscarriage of justice: Apostilides.[6]

3. Cross-examination of a witness as to another witness' character

  1. The next ground argued is that there has been a miscarriage of justice in that the learned trial judge refused to allow defence counsel the opportunity to question the witness Nelson as to whether Cranney was an honest or dishonest person. 
  1. The question sought to be asked was: "... in relation to Mr Cranney and your knowledge of him, everything you know about him, what he has said and done, would you describe him as being an honest or dishonest person?"  The form of question was objected to and his Honour ruled it improper.  Mr Kimmins then rephrased the question, asking:

"You are aware Mr Cranney - you have spoken to a number of people over the years about Mr Cranney, have you? -- Yes.

Alright, people who, from your knowledge, have known him over a period of years? -- Yes.

And what general reputation does Mr Cranney have in the circles that you move in? -- A standover."

  1. His Honour was asked to reconsider the matter later and again ruled the question inadmissible.
  1. The general rule cited with approval in Cross on Evidence[7] is stated in R v Watson[8] as:

"... a party against whom a witness is called, may examine witnesses as to the general character [of the proffered witness], but he is not allowed to prove particular facts, in order to discredit him.  The witnesses may state, that he is not a man to be believed upon his oath; but they cannot state, that at such a time he committed a particular offence, for although every man may be supposed to be capable of defending his general character, he cannot come prepared to defend himself against particular charges without notice, and such evidence would, on that account, supply but a very imperfect test of credibility. ...

The usual question for the purpose of discrediting the testimony of a witness is, Would you believe that witness upon his oath? but the particular reasons have never been received."[9] 

  1. R v Brown and Hedley[10] reaffirmed the right of the defence to call witnesses to prove that they would not believe witnesses for the prosecution on their oaths.   In R v Richardson; R v Longman,[11] the English Court of Appeal held that the question "Would you believe her on her oath?" was a proper question. 
  1. Counsel for the respondent submits that the Queensland position is as set out in R v Foley.[12]  The questions there held to be inadmissible related to a witness commenting on the truthfulness of another witness' evidence, not the general reputation for honesty of the witness.
  1. The question sought to asked by defence counsel below was not an improper question, but the question he was permitted to ask was to the same effect.  The elicited answer demonstrated that no miscarriage of justice has occurred.  In any case, there could be no doubt in the jury's minds that great care had to be taken before acting on the evidence of either Cranney or Nelson who were both cross-examined as to their credit; Nelson's opinion as to whether Cranney should be believed on oath carried the weight of a bantam feather. 

4. Failure to give a direction in terms of R v Woollin.[13]

  1. The next ground of appeal is that the learned trial judge erred in failing to direct the jury in terms of R v Woollin.  That case requires that where intention to kill or do serious bodily harm is to be inferred, that a jury must be directed that they may not infer the necessary intention unless they felt sure that death or serious bodily harm was a virtually certain result of the defendant's action.
  1. Cases based on the common law, and involving English statutes such as the Criminal Justice Act 1967 (UK) are of limited assistance in Queensland where the Criminal Code applies.  The case against Laycock was based solely on s 302(1) of the Criminal Code and required proof beyond reasonable doubt of an actual intention to kill or do grievous bodily harm.
  1. The direction of the trial judge complained of is:

"Now, intention then, is the key to murder.  So far as Laycock is concerned, whether you are satisfied beyond reasonable doubt that he had an intention of that kind.  Sometimes people announce their intentions.  They tell you what they intend to do.  More likely they don't, but even if they don't you may be able to infer a person's intention from what the person says or from what the person does and, again, you do that in the context of the whole of the evidence."

  1. His Honour also later told the jury:

"... that in order to found a verdict of guilty you must be satisfied that any inference consistent with innocence has been eliminated.  In other words, if you consider that there are competing inferences in order - and some of the competing inferences are consistent with innocence and some are consistent with guilt - in order to be able to found guilt on an inference you must be satisfied that any inference consistent with innocence has been eliminated."

The case against Laycock was based solely on s 302(1) of the Criminal Code and depended upon the Crown establishing beyond reasonable doubt that the appellant intended either to kill Darryl Lewis or to do him grievous bodily harm. 

  1. His Honour's direction to the jury as to the intention required to establish murder under s 302(1) was completely consistent with R v Willmot (No 2):[14]

"It may be that the problem which has arisen in this case derives from an assumption that s 302 of the Criminal Code was intended as no more than a restatement of the common law.  It cannot be too strongly emphasised that where the construction of the Code is involved the point of departure must be the Code itself ...

The mental element which must be proved when a case of murder goes to the jury under s 302(1) is intention to cause death or to do grievous bodily harm.  The ordinary and natural meaning of the word 'intends' is to mean, to have in mind.  ...

Now there is, in my judgment, no ambiguity about the expression as used in s 302(1) and it is not only unnecessary but undesirable, in charging a jury, to set about explaining an ordinary and well understood word in the English language. It is a truism that it is the Code itself which speaks and that it is, with respect, wrong in principle to gloss it.

It must be accepted that there is a difference in the formulation of murder at common law and in  s 302(1) although there may be little difference in substance.  The common law formulation will be found, for Australia, in The Queen v Crabbe.[15]   It is unlawful homicide with malice aforethought: and malice aforethought means intention to cause death or grievous bodily harm or knowledge that it is probable that death or grievous bodily harm will result.  Knowledge of the probability of death or grievous bodily harm is not an element of s 302(1), although, if established, it leads almost inevitably to the conclusion that death or grievous bodily harm was intended. ...  In Queensland the mental element is intention to cause death or grievous bodily harm.  It is what the High Court in Crabbe at 419, after stating Stephens' formulation, referred to as 'actual intent'.

In charging the jury elaboration or paraphrase of what is meant by intent should be avoided: Reg v Moloney [1985] 2 WLR 648, at p 664.  The jury should of course be told in appropriate cases that intention is not the same as motive or desire.  They should also be told that they are to decide whether the intention is established on the whole of the evidence."

  1. A Woollin direction was not required in this case.
  1. The appellant complains that the learned trial judge referred to Dr Naylor's evidence as to the extensive injuries suffered by the deceased, inviting the jury to "take whatever assistance you seem (sic) appropriate from the evidence of Dr Naylor, as to the nature and extent of the injuries ... ."  Mr Kimmins submitted this direction was wrong as many of the injuries must have occurred at the house.  He submits that whilst his Honour referred to passages of Dr Naylor's evidence and the cause of death, he did not refer to his cross- examination to the effect that whether the cause of death was the earlier injuries inflicted at the house or the final injury caused with the baseball bat depends on the condition of the deceased in the car in between:  the worse his condition in the car, the more likely the injuries at the house were responsible for his death.
  1. In order to determine Laycock's intent the jury were entitled to consider Dr Naylor's evidence as the learned trial judge instructed them; the judge was not obliged to read all Dr Naylor's evidence to the jury.  The injuries suffered by the deceased were relevant matters for the jury when considering the issue of intention.
  1. Mr Kimmins also complains that his Honour earlier invited the jury to consider why the car stopped and Darryl Lewis was taken out of the car:  was it "to subdue him once and for all".  He argues that this was unfair and may have influenced the jury to wrongly infer an intent to kill or do grievous bodily harm.  His Honour was entitled to make comments on the evidence and told the jury that factual issues were always for them alone.  This comment was designed to assist them in focussing on the real issues in the case and was appropriate.
  1. Other damning evidence relevant to intent from Nelson and Schultz as to Laycock's words after the batting incident was not mentioned by his Honour.
  1. His Honour's direction as to intention was proper and balanced.  There is nothing in this ground.

5. Provocation

  1. The next ground of appeal argued was that the learned trial judge erred in not allowing the jury to consider the question of provocation.
  1. It is settled law that if, on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation and whether or not the issue has been specifically raised at the trial by defence counsel and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked: see Bullard v The Queen[16] and Van Den Hoek v The Queen.[17]
  1. The issue is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation: Van Den Hoek,[18]  R v Hunter[19] and R v Sreckovic.[20]  The test to be applied under s 304 is the effect of the provocation on the mind of an ordinary reasonable man: R v Sabri Isa.[21]
  1. Section 304 of the Criminal Code provides:

"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person's passion to cool, the person is guilty of manslaughter only."

  1. Mr Kimmins submits that Nelson's evidence of Darryl's verbal abuse and aggression in the car raises provocation.
  1. The facts in this case are very different from those in Hunter, Van Den Hoek and Sreckovic.  The struggles and words of Darryl in circumstances where he had been accosted on his own property and abducted in his own motor vehicle by a large group of armed, aggressive men in the surrounding circumstances of this case cannot fairly raise evidence that Laycock hit Darryl with a baseball bat in the heat of passion caused by sudden provocation.  His Honour properly left self-defence to the jury but he was not required to direct on provocation.

6. Aiding in self-defence

  1. The next ground argued is that the learned trial judge erred in failing to allow the jury to consider the defence of aiding in self-defence.
  1. In making this submission, Mr Kimmins relied on Nelson's account that Laycock dragged the deceased off him and the deceased then advanced on and attacked Laycock and a fight ensued.  On Nelson's evidence the appellant was not acting in defence of Nelson at the time the blows were struck with the bat; Nelson had returned to the car and Laycock was defending himself. 
  1. I have already indicated the issue of self-defence was left to the jury and there is no complaint about the directions in that respect.  There is nothing in this ground that resulted in a miscarriage of justice.

7. The Judge's direction as to inferences

  1. The next ground of appeal is that the learned trial judge erred in his summing up to the jury by failing to properly direct them as to the drawing of inferences.
  1. Mr Kimmins requested a redirection as to inferences and his Honour acceded to that request by giving the redirection set out earlier in para 64.
  1. No further request for a redirection was made.  In support of his argument, Mr Kimmins relied on Knight v The Queen.[22]  The issue in that case, however, was not whether the trial judge failed to give an appropriate direction to the jury, but whether the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellant because of the competing inferences which were open, that is whether the verdict was unsafe and unsatisfactory or whether a jury acting reasonably could have rejected as a rational inference the possibility favouring Knight.[23]
  1. The appellant's argument is really a repetition of the claim that the verdict of the jury is unsafe and unsatisfactory. The direction given by his Honour was a standard direction commonly given to juries by judges and no proper complaint can be made in respect of it. 
  1. The jury verdict is not unsafe and unsatisfactory in any of the respects argued, either alone, collectively or in any other way.  The appellant has not demonstrated any error resulting in a miscarriage of justice.  It follows that Laycock's appeal against conviction must be dismissed.

Stokes' appeal against conviction

  1. I turn now to the appeal against conviction in relation to Stokes.  The prosecution case against Stokes was that as the driver he assisted the killer under s 7(1)(b) and/or (c) of the Criminal Code or that the killing occurred in the context of Stokes and the killer carrying out a common intention to prosecute an unlawful purpose under s 8 of the Criminal Code.
  1. The appellant Stokes, who was represented by Mr Walker SC, argued in ground 1 that:
  1. the learned trial judge erred when he failed to direct the jury in accordance with the particulars upon which the Crown has always relied;
  1. his Honour erred when he failed to give notice of the manner in which he intended to direct the jury;
  1. in the circumstances, his Honour erred when he failed to put the defence case to the jury

and in Ground 3 that: having regard to

  1. deficiencies in the evidence; and
  1. deficiencies in the summing up

the verdict is unsafe and unsatisfactory.

These grounds can be conveniently dealt with together.

(1) The prosecution case

  1. The prosecution opened its case against Stokes as follows:

"He was not the person who wielded the bat, but that he was one of the persons who had been involved in the fighting, the search of the house and the assaults back at the house.  He is a person who, the Crown says, must have been aware of what had been done by Laycock at the house with the baseball bat and generally, so that, at the point in time that Darryl Lewis was thrown into the car to be driven away, he was a person who had knowledge of what had transpired that night, why it had happened, how it had happened, by whom and what it was that was going to happen from there. ...  these people have, at the very least, formed a common intention to take the Lewis brothers and pull Schultz away from their own home to make them effective prisoners, to deprive them of their freedom and to take them away and force them to reveal the whereabouts of this bike and to force them to submit to having the bike taken out of their possession. ...

... it was an almost inevitable consequence of the prosecution of that purpose ... that he cannot but have known that Glenn Laycock was going to further injure the deceased and with the intention of at least doing grievous bodily harm."

  1. The alternative basis which the Crown opened was that Stokes:

"... assisted or aided Laycock in the commission of the offence, knowing the offence that he is assisting, that is a serious assault with the intention at the very least of causing grievous bodily harm by Laycock on Lewis and he has done this by means of driving the car, stopping the car, keeping the car there, present and remaining at the scene whilst Laycock and Nelson are out of the car and the attack on Lewis is going on, by staying there whilst Lewis is thrown back in the car, by remaining whilst the other two themselves get back in the car and by them driving them all away from the scene of the attack."

  1. The prosecution conducted and concluded the trial on these bases.

(2) The Judge's directions

  1. As has been noted, in summing up the case against Laycock the learned trial judge invited the jury to consider the question "Why did the car stop?  Why was Darryl Lewis taken out of the car? ... Was he taken out to subdue him once and for all, as it were, in the light of the account of events which Schultz has given us as to what was going on."
  1. Later in the summing up, his Honour dealt with Stokes' case.  His Honour read to the jury s 7(1)(b) and (c) of the Criminal Code and told them before finding Stokes guilty of murder they must be satisfied that the batter murdered Darryl Lewis; that Stokes in some way helped or assisted the batter in killing Lewis, and that at that time, Stokes knew the batter intended to kill Lewis or to do him grievous bodily harm.  His Honour invited the jury to focus on the events taking place in the car immediately prior to its stopping, noting:

"... you will have to consider whether Stokes' stopping of the vehicle assisted the batter in effecting the murder of Lewis.  And you would have to consider whether Stokes knew at the time he stopped the car, if that is the assistance in question, that the batter intended to kill or cause grievous bodily harm to Lewis."

  1. In respect of s 7 and manslaughter, his Honour said the question was "Did Stokes in some way help or assist the killer in the unlawful killing of Darryl Lewis knowing that he intended to bring about that result."
  1. There is no complaint as to the s 7 directions.
  1. His Honour read s 8 of the Criminal Code to the jury, instructing them that an intention to prosecute an unlawful purpose can be inferred from:

... the surrounding circumstances, the behaviour of the parties and the like.  Moreover, a plan involving an intention to commit an offence can arise on the spur of the moment ... .  A common intention to prosecute an unlawful purpose may change over time.  The intention may expand or contract in the circumstances.  The intention may vary as the situation develops."

His Honour invited the jury to consider whether the plan changed in the light of the events which took place in the car and:

"whether the common intention to prosecute an unlawful purpose was to finally subdue Darryl Lewis by subjecting him to an assault and perhaps an assault which carried with it an intention to cause death or grievous bodily harm and if you are satisfied that there was such a common intention, then some of the conditions of s 8 would have been satisfied."

His Honour told the jury they must be satisfied that Stokes and the batter formed a common intention and that what Laycock did was not entirely his own idea outside any common intention to prosecute an unlawful purpose in conjunction with Stokes, adding:

"If you are satisfied on the view you take of the evidence that the batter and Stokes planned to give Lewis a beating, and in carrying out that plan together the batter murdered Lewis, Stokes too is taken as having murdered him if, but only if murder was the kind of offence likely to have resulted from carrying out the plan.

If you are not satisfied that the batter murdered Lewis, in other words, if you are not satisfied that it was an unlawful killing in the manifestation of an intent to kill or cause grievous bodily harm was a consequence likely to have resulted from the plan, you may find Stokes guilty of manslaughter.  In other words, Stokes may be guilty of manslaughter if you are satisfied that the batter was guilty of manslaughter provided those three conditions that I mentioned to you a moment ago are satisfied."

  1. His Honour was invited to give a redirection on s 8 and after argument did so in the following terms:

"... you will recall in the context of s 8 and the implication of Stokes, I spoke to you about a number of matters in the context of common purpose could change and the unlawful intent could change as the situation changed.

And, of course, in considering that view you will need to take into account the whole of the evidence.  I adverted to some features of it - there were some features I didn't advert to.  I mean, for example, there was some evidence that at the scene - well, the first thing is, I suppose, that when they arrived there they didn't find the seven people and so on that they thought they might find.  That might have had an effect on the plan.

The weapons were collected - at least the firearms were, there is some evidence, although the evidence suggests that the baseball bat was there.

It may be that the vehicle stopped because of a concern about the situation being created by Lewis' activities in terms of the safe driving of the vehicle.  They're all considerations, and any others that occur to you that you think might bear on the fact that the plan and the common intention to commit a criminal offence was going down rather than perhaps up.  You need to consider those considerations in terms of that."

(3) Section 8 of the Criminal Code

  1. Mr Walker submits that the prosecution case as to s 8 was quite different from that put to the jury by the trial judge and that the critical misdirection was the suggestion that the common purpose "was to finally subdue Darryl Lewis by subjecting him to an assault and perhaps an assault which carried with it an intention to cause death or grievous bodily harm" together with the suggestion that "the batter and Stokes planned to give Lewis a beating" rather than the common intention relied on by the prosecution, to deprive Darryl of his liberty: a link cannot reasonably be inferred between stopping the car and the actions of the batter as the car may have been stopped for innocent purposes, for example, for safety reasons.  It was essential to the plan that the deceased be kept alive in order to locate the bike; if the deceased was killed or rendered unconscious this could not be achieved.  The fact that Darryl's car was taken in order to enable the Lewis brothers and Schultz to return home after the bike had been retrieved also supports this theory.
  1. One difficulty with that submission is that the deceased's brother, Scott Lewis, also knew the location of the shed holding the bike parts; he too was being taken to the location in a different vehicle and unlike his brother was cooperative after the initial serious assault upon him.
  1. Section 8 provides:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

  1. In Stuart v The Queen,[24] Gibbs J said:

"Under s 8 it is necessary for the jury to consider fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose."

  1. Jacobs J said:[25]

"The purpose under s 8 must relate both to any ultimate purpose and to the proposed means of achieving that purpose.  The probable consequence of the prosecution of the purpose requires a consideration not only of any ultimate objective but also of the proposed course whereby it is to be attained."

  1. The question for the jury was whether the striking of the deceased with the bat by Laycock which was not justified or excused and which caused death was a probable consequence of prosecuting the purpose common to Stokes and Laycock, namely depriving Darryl Lewis of his liberty: R v Barlow.[26]
  1. Here, there was evidence which, if accepted by the jury, could satisfy them that the unlawful killing of Darryl Lewis by the striking with the bat outside the car by Laycock was a probable consequence of Stokes' and Laycock's prosecution of the deprivation of liberty of Darryl Lewis; Stokes had been peripherally involved in the initial fight between Darryl Lewis and other members of the Finks Motor Cycle Club, Darryl Lewis had resisted violently and Laycock and Nelson had responded accordingly.  Darryl had been injured and his hair was heavily matted with blood.  Laycock took the bat with him in the car: it was held upright between his knees in the front passenger seat of the car driven by Stokes; Darryl continued to be aggressive and to violently resist as he was thrown into his own car; the car was stopped by Stokes; Nelson and Laycock removed Darryl from the car and Laycock struck him with the bat.  As part of the progression of the plan to deprive Darryl of his liberty, it was foreseeable that, although already injured, Darryl may have to be further subdued, and, if necessary  assaulted with Laycock's baseball bat in order to overcome his resistance.  As Scott Lewis was also being transported to the shed and knew its whereabouts, it was not essential to the plan to keep Darryl Lewis conscious; it was however necessary to ensure Darryl did not escape to get assistance and preferable to end his resistance.
  1. His Honour's redirection on s 8 ensured the defence case was fairly presented to the jury.
  1. The jury's verdict is consistent with the jury not being satisfied that it was a probable consequence of the prosecution of Laycock and Stokes' common intention to unlawfully detain Darryl that Darryl would be killed by an assault by Laycock with an intention to kill or do grievous bodily harm, but that, in all the circumstances, it was a probable consequence of that common intention that Darryl would be unintentionally but unlawfully killed.
  1. His Honour's directions to the jury focussed them on the real issues for their consideration.  The direction given by his Honour suggesting that the common purpose was that "the batter and Stokes planned to give Lewis a beating" is in fact more favourable to the defence than it need be: the Crown need only have established that the assault by Laycock of the deceased was in all the circumstances a probable consequence of the plan entered into by Laycock and Stokes to deprive Lewis of his liberty. 
  1. A verdict based on s 8 is not, on the evidence, unsafe and unsatisfactory; nor is it demonstrated that the appellant was prejudiced in the manner of the conduct of his case because of any variance between the conduct of the Crown case and the directions given by the trial judge who fairly put the defence case to the jury, especially in the redirection.

(4) Section 7 of the Criminal Code

  1. There is no complaint as to the direction given on s 7, however the appellant submits that no reasonable jury could safely draw the inference that the appellant knew at the time the car was stopped that Laycock was going to unlawfully kill the deceased.
  1. There was sufficient evidence to allow the jury to draw that inference.  If the jury accepted that when Stokes stopped the car he knew of Darryl's fight with Laycock at the house, Darryl's aggressive behaviour which continued in the car that Laycock was armed with a bat, and that Scott was prepared to take them to the bike, the jury could reasonably have drawn the inference that Stokes stopped the car knowing that Laycock would assault Darryl with a view to ending his resistance, but not knowing that Laycock intended to kill him or to do grievous bodily harm.
  1. The verdict is on the evidence reasonable and there is no justifiable complaint as to the directions given.

(5) The rejection of the stay application

  1. The appellant's final ground of appeal is that the learned trial judge erred when he failed to order a stay upon the charge of murder.
  1. On the first day of the trial, the appellant applied for a stay.  On 21 October 1998 Nelson had pleaded guilty to manslaughter and unlawful deprivation of liberty.  The prosecution accepted those pleas in full satisfaction on an indictment charging murder on the basis that Nelson was "present but not personally participating in that final act of violence, and it was on that basis that his offence falls short of murder given the absence of the relevant intent."   As the learned trial judge subsequently noted when sentencing Stokes, Nelson's role was more significant than that of the appellant and his culpability comparatively higher.  Therefore, it is submitted, the continued prosecution of Stokes on a murder charge was an abuse of process and there is a real risk that as murder was left to the jury, the jury may have compromised in returning a verdict of guilty to manslaughter rather than returning a not guilty verdict on both murder and manslaughter.
  1. It was not submitted below that there was no case to answer in respect of murder.  Murder was open to the jury on the indictment:  there was evidence from which they could have concluded that Stokes was guilty of murder; for example, if they were satisfied beyond reasonable doubt that Stokes stopped the car knowing that Laycock intended to assault Darryl and at least cause him grievous bodily harm.  It is always a matter for the prosecution to decide which charges it will bring against an accused person.  It is also a matter for the prosecution to decide whether, in respect of one co-accused, it will accept a plea of guilty to manslaughter rather than murder and call that co-accused at the trial of another.  To continue to proceed against that other co-accused on the greater charge in these circumstances is not an abuse of process.  There are no grounds to conclude that the verdict of manslaughter which was properly open on the evidence was a compromise verdict.
  1. It follows that Stokes' appeal against conviction must be dismissed.

Sentence

  1. Stokes also claims his sentence of ten years imprisonment with a recommendation  for parole eligibility after three years is manifestly excessive.
  1. Mr Walker has no complaint with the recommendation for parole but submits that the head sentence of ten years imprisonment is too heavy when compared to the sentences imposed on Cranney and Nelson and their respective culpability.
  1. Cranney was sentenced to nine years imprisonment with a recommendation for parole eligibility after two and a half years for committing grievous bodily harm with intent upon Scott Lewis.  Cranney was the principal organiser of the enterprise in that the object was to achieve the return of his stolen motorcycle.  He committed the serious assault upon Scott and was a leader in the events of the night.  The offence against Scott constituted a breach of a 12 month suspended sentence.  On the other hand, Cranney pleaded guilty and was sentenced under s 13A of the Penalties and Sentences Act 1992.  But for the s 13A undertaking, Cranney would have been sentenced to 12 years imprisonment.
  1. Nelson pleaded guilty to manslaughter and was sentenced to nine years imprisonment with a recommendation for parole eligibility after two and a half years.  Nelson was more involved in the violence at the deceased's home and in the car than Stokes.  On the other hand, Nelson, like Cranney, pleaded guilty and gave an undertaking under s 13A.  But for his undertaking, Nelson, too, would have been sentenced to 12 years imprisonment.
  1. In comparing the sentences imposed upon Stokes on the one hand and Cranney and Nelson on the other, the comparable sentence is 12 years imprisonment.  In addition to s 13A undertakings are their pleas of guilty, a significant mitigating factor which was absent in the case of the appellant.
  1. The appellant Stokes was not himself aggressive and played a lesser role than his other co-accused.  The learned sentencing judge found he was remorseful.  Stokes had a good work history, involvement in voluntary community work, a number of favourable references and a limited criminal history.
  1. Nevertheless, the offence could hardly be more serious and carried with it the dreadful consequences for the deceased's mother, brother and sister set out in the tendered victim impact statements.  The appellant stopped the car in order to assist Laycock to commit a dangerous assault on the deceased.  He did not have the mitigating benefit of a plea of guilty.
  1. In all those circumstances the sentence of imprisonment of ten years with a recommendation for parole eligibility after three years is not manifestly excessive, nor does it, when compared to the sentences imposed on Cranney and Nelson, reasonably give rise to a sense of justifiable grievance: see Lowe v The Queen[27] and Postiglione v The Queen.[28]  I would refuse the application for leave to appeal against sentence.

The orders

  1. I propose the following orders.  In respect of Laycock's appeal, the appeal against conviction is dismissed.  In respect of Stokes' appeal and application for leave to appeal against sentence, the appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

 

CA No 465 of 1998

CA No 487 of 1998

 

Brisbane

 

Before McMurdo P

McPherson JA

Atkinson J

 

THE QUEEN

 

v

 

GLEN DOUGLAS LAYCOCK

Appellant

 

- and- 

 

LOU ANTHONY STOKES

(Applicant)

Appellant

 

REASONS FOR JUDGMENT - McPHERSON JA

 

Judgment delivered 6 August 1999

 

  1. I have read and agree with the reasons of the President for dismissing these appeals against conviction, as well as the application for leave to appeal by Stokes against sentence. What follows is added in support of the conclusions arrived at in those reasons.
  1. There was evidence on which the jury could properly find that the baseball bat was used to strike Darryl Lewis on the occasion when the car driven by Stokes stopped on its outward journey; that the person who used the bat to strike Lewis in that way and on that occasion was the appellant Laycock; and that his action in doing so was a substantial cause of the victim's death or contributed significantly to it. That is the test that was adopted in Royall v The Queen [1991] 172 CLR 378, 411, 423, which has been applied in this Court under s 302(1)(a) of the Criminal Code, for example, in R v Jeffrey (CA no 154/1997; 14 Aug 1997 unrep). Having regard to the condition of the victim as it was described to be before and after that incident, there was ample evidence on which the jury could find that, at the very least, the blow from the bat hastened his death within the meaning of s 296 of the Code. For the purpose of establishing murder under s 302(1)(a), it was sufficient for the prosecution to prove that the blow was intended to cause death or grievous bodily harm. See Charlie v The Queen [1999] 73 ALJR 809.
  1. The other major question on which I wish to comment is the criminal responsibility of Stokes for the offence of manslaughter of which he was convicted. There were potentially two routes to that verdict in his case. Both depended to some extent on the view the jury formed of the reason why Stokes halted the car, enabling Laycock to get out and hit Daryl Lewis with the baseball bat. There is nothing in the evidence to suggest that the car was stopped for any reason other than that of putting an end to the victim's apparently defiant conduct in the back seat of the vehicle. In the circumstances the jury were plainly entitled to infer that that was the reason why the vehicle was stopped.
  1. Whether or not stopping the car was in fact done at the request, express or implied, of Laycock does not matter if that was the purpose with which Stokes brought the car to a halt.  Doing so for that reason constituted an act done by Stokes to assist Laycock in assaulting Darryl Lewis.  As such it attracted criminal responsibility under s 7(1)(b) or s 7(1)(c) of the Code for the ensuing offence of unlawfully killing Lewis that was caused or significantly contributed to by the blow with the bat that followed. Stokes could have been convicted of murder under those provisions only if he knew that the intention of Laycock was to cause death or grievous bodily harm to Lewis. See R v Jeffrey, above. The jury were evidently not satisfied beyond reasonable doubt that he knew of Laycock's intention to that effect. That being so, it was open to the jury to find him guilty of manslaughter if, as I have said, he stopped the car to enable Laycock to carry out an assault on the victim that in fact caused, or significantly contributed to, or hastened, his death.
  1. Much the same reasoning applies to the second of these two grounds of potential criminal responsibility for manslaughter on the part of Stokes, which was s 8 of the Code. For that, it was necessary to find it was the common intention or purpose of Laycock and Stokes that Lewis should be assaulted. Such a purpose could be inferred from the fact that Stokes halted the car to enable Laycock to get out and deal with the defiant conduct of Lewis by assaulting him with the baseball bat. The ensuing death was, on any view of it, a probable consequence of their carrying out that joint intention or purpose together. I do not consider that, on the evidence as it emerged at the trial, the judge was confined to directing the jury that the common intention or purpose in question was limited to that of depriving Lewis of his liberty, although, even if the question were so confined, it was reasonable for the jury to find that the ensuing death was a probable consequence of their having and carrying out such an intention.
  1. As a captive in the car, Lewis was not free to go or to even say or do what he wished. When he persisted in doing so, he was, to use his Honour's expression, subdued "once and for all" to stop him making a nuisance of himself. The lethal assault with the baseball bat may in the end have gone further than Stokes himself expected or intended, which may be why the jury was prepared to convict Stokes only of manslaughter. To the extent that he shared with Laycock a common intention that the victim should be assaulted, Stokes was, if the ensuing death of the victim was found to be a probable consequence of carrying out that common intention together, criminally responsible under s 8 of the Code for unlawfully killing Lewis. The extent of his responsibility may in that respect be compared to that of the offender Jervis discussed in R v Jervis [1993] 1 Qd R 643, 650, 655-656. His Honour's directions in respect of s 8 were in conformity with the requirements of that section, and disclose no error of fact or law.
  1. Finally, although in substance agreeing with what the President has written on the question of the Crown's failure to recall Schultz, it may also be added that it is not altogether easy to identify the theoretical basis on which Det McLeod could properly have been cross‑examined about a statement made to him by Schultz during the pre-trial investigation.  The statement, which was apparently to the effect that he was "50%" sure that Steve Avis was the person who wielded the baseball bat, was hearsay, and no more admissible in evidence through cross-examination of McLeod than if McLeod had been called by the accused and asked about it in chief: cf. R v Callaghan [1994] 2 Qd R 300, 302-303. If it was somehow designed to test McLeod's credit as a witness with a view to proving a prior inconsistent statement, then under s 18 of the Evidence Act 1977 the onus of proving that statement by calling Schultz rested not on the prosecution but on the accused.
  1. The statement that Avis might have been the one that used the baseball bat was, however, made to and not by McLeod. Contradicting the witness under s 18 of the Evidence Act was almost not what Mr Kimmins of counsel for the accused had in mind when he asked McLeod about it at the trial. It is much more likely that the theoretical justification for cross‑examining McLeod about what Schultz had said is to be found in Wakely v The Queen [1990] 64 ALJR 321, 325 col 2, as being calculated to "throw some light on the reliability of the whole investigation", which suggests the matter is one going to credibility rather than directly to relevance. For the reasons explained by the High Court in Wakely, a judge should allow some leeway to cross-examining counsel to test the evidence of an opposing witness; but there is nothing at all in what their Honours said there to suggest that, once the matter is raised in cross-examination, the prosecution is under a duty to elucidate a collateral issue by calling further witnesses at the request of the defence. In R v Wakely, the problem arose because one of the investigating police officers did not give evidence at the trial. He had died on the night of the investigation owing, it seems, to an overdose of drugs in circumstances raising suspicions that the offence with which the accused was charged might, as the defence was suggesting, have been the product of police fabrication: see R v Wakely [1994] 2 Qd R 196, which was the successful appeal against conviction at the retrial following the High Court decision in 1990.
  1. On the appeal here, the complaint was not that Mr Kimmins of counsel, who appeared for Laycock at the trial, had been prevented from asking a question in cross-examination, as was the case in Wakely v The Queen [1990] 64 ALJR 321, but that the prosecution had not been required to recall Schultz to enable him to be cross-examined afresh by Mr Kimmins. Schultz had by then already given evidence at the trial and been cross-examined by Mr Kimmins, without being asked about his pre-trial statement to Det McLeod. There was evidently some risk that, if asked about it, Schultz might have given an unwelcome answer or answers either in cross-examination or later in re-examination by the Crown. There is therefore no reason to suppose that failure to recall Schultz produced any miscarriage of justice at the trial of the appellant Laycock.
  1. The appeals against conviction, and the application by Stokes for leave to appeal against sentence, should be dismissed.


IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

 

C.A. No. 487 of 1998

C.A. No. 465 of 1998

 

Brisbane

 

Before  McMurdo P

McPherson JA

Atkinson J

 

THE QUEEN

 

v.

 

GLEN DOUGLAS LAYCOCK

Appellant

 

- and -

 

LOU ANTHONY STOKES

(Applicant)

Appellant

 

REASONS FOR JUDGMENT - ATKINSON J

 

Judgment delivered 6 August 1999

 

  1. I agree with the reasons of the President and of McPherson JA for dismissing the appeals against conviction as well as refusing the application for leave to appeal by Stokes against sentence.

Footnotes

[1] [1989] 168 CLR 79.

[2] [1996] 186 CLR 427, 446.

[3] [1991] 3 AllER 670, 677.

[4] CA No 427 of 1998, 28 May 1999.

[5] [1984] 154 CLR 563.

[6] At 575.

[7] Australian edition - J.D. Heydon, Butterworths 1996 [19045].

[8] 171 ER 591 at 605.

[9] Ibid at 605.

[10] [1861-73] All ER Rep Ext 2151.

[11] [1968] 2 AllER 761, 766.

[12] CA No 136 of 1998, 11 August 1998, pp.  11-12.

[13] [1998] 4 All ER 103.

[14] [1985] 2 QdR 413, 417-418.

[15] [1985] 59 ALJR 417.

[16] [1957] AC 635, 642.

[17] [1986] 161 CLR 158, 161-162.

[18] Ibid, 162.

[19] [1988] 1 QdR 663, 664.

[20] [1973] WAR 85.

[21] [1952] StRQd 269, 280, 283, 307.

[22] [1992] 66 ALJR 860.

[23] See 863.

[24] [1974] 134 CLR 426, 443.

[25] At 450.

[26] [1996-1997] 188 CLR 1.

[27] [1984] 154 CLR 606.

[28] [1996-1997] 189 CLR 295.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Laycock and Stokes

  • Shortened Case Name:

    The Queen v Laycock and Stokes

  • MNC:

    [1999] QCA 307

  • Court:

    QCA

  • Judge(s):

    McMurdo P, McPherson JA, Atkinson J

  • Date:

    06 Aug 1999

Litigation History

EventCitation or FileDateNotes
Appeal Determined (QCA)[1999] QCA 30706 Aug 1999Appeals against conviction dismissed; application for leave to appeal against sentence refused (McMurdo P; McPherson JA agreeing with additional reasons; Atkinson J agreeing)

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Bullard v The Queen (1957) AC 635
2 citations
Jump To
Cite 1 - (1957) AC 635
Cite 2 - (1957) AC 635
Charlie v The Queen (1999) 73 ALJR 809
2 citations
Jump To
Cite 1 - (1999) 73 ALJR 809
Cite 2 - (1999) 73 ALJR 809
Crofts v The Queen (1996) 186 CLR 427
2 citations
Jump To
Cite 1 - (1996) 186 CLR 427
Cite 2 - (1996) 186 CLR 427
Longman v The Queen (1989) 168 CLR 79
2 citations
Jump To
Cite 1 - (1989) 168 CLR 79
Cite 2 - (1989) 168 CLR 79
Lowe v The Queen (1984) 154 CLR 606
1 citation
Jump To
Cite 1 - (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
1 citation
Jump To
Cite 1 - (1997) 189 CLR 295
R v Apostilides (1984) 154 C.L.R 563
2 citations
Jump To
Cite 1 - (1984) 154 C.L.R 563
Cite 2 - (1984) 154 C.L.R 563
R v Barlow (1997) 188 CLR 1
1 citation
Jump To
Cite 1 - (1997) 188 CLR 1
R v Brown and Hedley [1861-73] All ER Rep Ext 215
1 citation
Jump To
Cite 1 - [1861-73] All ER Rep Ext 215
R v Burns [1999] QCA 189
2 citations
Jump To
Cite 1 - [1999] QCA 189
Cite 2 - [1999] QCA 189
R v Callaghan[1994] 2 Qd R 300; [1993] QCA 419
1 citation
Jump To
Cite 1 - [1994] 2 Qd R 300
R v Cheshire [1991] 3 All ER 670
2 citations
Jump To
Cite 1 - [1991] 3 All ER 670
Cite 2 - [1991] 3 All ER 670
R v Hunter [1988] 1 Qd R 663
2 citations
Jump To
Cite 1 - [1988] 1 Qd R 663
Cite 2 - [1988] 1 Qd R 663
R v Isa [1952] St R Qd 269
2 citations
Jump To
Cite 1 - [1952] St R Qd 269
Cite 2 - [1952] St R Qd 269
R v Jervis [1993] 1 Qd R 643
1 citation
Jump To
Cite 1 - [1993] 1 Qd R 643
R v Knight (1992) 66 ALJR 860
2 citations
Jump To
Cite 1 - (1992) 66 ALJR 860
Cite 2 - (1992) 66 ALJR 860
R v Laycock [1861-73] All ER Rep Ext 2151
1 citation
Jump To
Cite 1 - [1861-73] All ER Rep Ext 2151
R v Richardson; R v Longman [1968] 2 All ER 761
2 citations
Jump To
Cite 1 - [1968] 2 All ER 761
Cite 2 - [1968] 2 All ER 761
R v Sreckovic [1973] WAR 85
2 citations
Jump To
Cite 1 - [1973] WAR 85
Cite 2 - [1973] WAR 85
R v Wakeley [1994] 2 Qd R 196
1 citation
Jump To
Cite 1 - [1994] 2 Qd R 196
R v Willmot (No 2) [1985] 2 Qd R 413
2 citations
Jump To
Cite 1 - [1985] 2 Qd R 413
Cite 2 - [1985] 2 Qd R 413
R v Woollin [1998] 4 All ER 103
2 citations
Jump To
Cite 1 - [1998] 4 All ER 103
Cite 2 - [1998] 4 All ER 103
R. v Watson (1817) 171 ER 591
2 citations
Jump To
Cite 1 - (1817) 171 ER 591
Cite 2 - (1817) 171 ER 591
Reg. v Moloney (1985) 2 WLR 648
1 citation
Jump To
Cite 1 - (1985) 2 WLR 648
Royall v The Queen (1991) 172 C.L.R 378
2 citations
Jump To
Cite 1 - (1991) 172 C.L.R 378
Cite 2 - (1991) 172 C.L.R 378
Stuart v The Queen (1974) 134 CLR 426
1 citation
Jump To
Cite 1 - (1974) 134 CLR 426
The Queen v Crabbe (1985) 59 ALJR 417
1 citation
Jump To
Cite 1 - (1985) 59 ALJR 417
The Queen v Foley[2000] 1 Qd R 290; [1998] QCA 225
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 290
Cite 2 - [2000] 1 Qd R 290
The Queen v Jeffrey[2003] 2 Qd R 306; [1997] QCA 460
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 306
Cite 2 - [2003] 2 Qd R 306
Van Den Hoek v The Queen (1986) 161 CLR 158
2 citations
Jump To
Cite 1 - (1986) 161 CLR 158
Cite 2 - (1986) 161 CLR 158
Wakeley v The Queen (1990) 64 ALJR 321
3 citations
Jump To
Cite 1 - (1990) 64 ALJR 321
Cite 2 - (1990) 64 ALJR 321
Cite 3 - (1990) 64 ALJR 321

Cases Citing

Case NameFull CitationFrequency
R v Duong, Nguyen, Bui & Quoc [2002] QCA 1512 citations
R v Hoban [2000] QCA 3844 citations
1

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